Alex Sanchez, the “anti-gang activist” who was accused last June of being a secret MS-13 gang shot-caller, is out on bail. (For background details, start here and follow the links.)

Sanchez’s lawyer successfully beat back an Associated Press motion to make public the transcript of the star-chamber secret bail hearing conducted under the octogenarian aegis of Federal Quirky Judge For Life Manuel Real. (Go here for details.) His Honor agree to protect the spineless political hack(s) who testified on behalf of Sanchez.

Lesson: the public has no right to know anything and the First Amendment rights of a Free Press do not reach into the Realm of El Rey Real.

Meanwhile, Sanchez’s supporters cooked up this nicely done video in which The Mother Teresa of Gangsterdom turns his soulful eyes to you (woo-woo-woo) in thanks. (Go here for link to the Simon & Garfunkel song, “Mrs. Robinson,” to which the preceding parenthetical refers, kid.)

A nice touch in this video — which is making the rounds of the “immigration rights” movement — is the background music, a cover of Bob Marley’s “Get Up, Stand Up (For Your Rights).” None of Sanchez’s bobbleheads want to get up, stand up, for their right, much less the right of the public, to know what went on behind locked doors in the chambers of Doktor Herr Schiedsrichter Real.

And completely forget about the rights of ordinary people to be free from gang violence.

As Kurt Vonnegut once wrote: poo-tee-wheet, poo-tee-wheet. Joltin’ Joe — a “Real” role model — may be gone, but we still have Alex!

Look around you, all you see are sympathetic eyes

Stroll around the grounds until you feel at home …

Our nation turns its lonely eyes to you, woo woo woo …

Joltin' Joe -- Son of Immigrants ... Not a Gangster

DiMaggio was born in Martinez, California, the eighth of nine children born to immigrants from Italy, Giuseppe (1872–1949) and Rosalia (Mercurio) DiMaggio (1878–1951). He was delivered by a midwife identified on his birth certificate as Mrs. J. Pico. He was named after his father; “Paolo” was in honor of Giuseppe’s favorite saint, Saint Paul. The family moved to San Francisco, California when Joe was one year old.

Alex Sanchez, Accused by Feds of Being a "Secret MS-13 Shot-Caller" and Now Out On Bail, With A Friend in Happier Times

Having written extensively about the Alex Sanchez case, I was looking forward to the so-called “Daubert hearing” to test the expertise of LAPD Detective and MS-13 gang expert Frank Flores.

The hearing was originally scheduled for Monday, March 8, 2010.

But — lo and behold — that hearing has been mysteriously postponed, from Monday until late April — by mutual agreement of defense and government.

This struck me as curious, because Sanchez’s mouthpiece has been aching to do a legal orchiectomy on Det. Flores for almost a year.

Why postpone the surgery, I wondered?

So, I started poking around.

See, the last two big gangsters I have tracked who suddenly entered into a series of friendly postponements with the government were working out plea bargains (Nelson Commandari and a loathsome creature who went by the nickname of “El Culiche,” or “Tapeworm.”)

Please be sure to note that there is NO evidence whatsoever that Alex Sanchez is negotiating a plea, because he — to the contrary — insists he is completely innocent of the charges and can prove it, and his counsel is fighting like a banshee to do just that.

But I do like to keep track of these sealed filings — and there are a LOT of them in this case — because weird things happen all the time. Especially in the closed, secret, under-the-radar, star chamber type proceedings that federal criminal courts are turning into.

(This business of secrecy is serious, people. Some day it may be your turn to have some imperious life-time appointed judge and an arrogant, anonymous, bureaucrat-prosecutor seal your case off. Good luck to you, then, my friend. You will be a tree falling in a forest. See, it’s their government, not yours!)

Call me nosy.

Well, what a shocker!

It turns out that Los Angeles is not Kansas, Dorothy!

And open court has a totally different meaning, dude, in LaLa Land.

Like, get out and shut up, man!

Watch the Razzies or something.

What I found was a curious set of recent filings concerning the transcript of the famous closed Sanchez bail hearing.

If you read Fairly Civil, you may recall that the U.S. government’s witness list was inadvertently made available on PACER just long enough for me to find it and publish it before it was sealed!

On the other hand, Sanchez’s cozy little list of friendly witnesses have never been publicly disclosed. People of principle, but they like to keep their principles in the closet, you understand.

Bottom line: Federal Judge Manuel L. Real has ruled against the Associated Press and ordered that the transcript of the secret, star chamber, bail hearing be kept sealed … i.e., none of us … none of Alex Sanchez’s many alleged ditto-head supporters … and none of his putatively former gangster buddies … can find out exactly what was said, by whom, and why the judge changed his mind and sprang Sanchez!

How convenient!

See, he’s innocent.

But you don’t need to know anything, except for the wonderfully redeeming power of Faith, man. Can you feel it, brother? Heal, I say! Heal! Satan, get thee out of this skeptic!

Apparently, AP reporter Christina Hoag reported Judge Real’s denial of its paltry motion on behalf of a Free Press and the Public. But the report was not picked up extensively. Certainly not in the Los Angeles Times. Yawn. More fun to read about the latest adventures of Lindsay Lohan.

Here is the state of play, as I make it out by reading the docket:

The Associated Press files a motion asking for the last Sanchez detention hearing transcript to be unsealed.

The U.S. government replies, OK by us, we agree there are insufficient grounds to seal the record, sure, unseal it.

But SANCHEZ (aka Mother Teresa of the Gang Universe), who one would think would LOVE to have the record unsealed to show how pure he is and deserving of release, has successfully opposed the AP’s motion!

So the record remains sealed. In other words, Sanchez does not want the public to read why he was released! (Please, counsel, spare me the phony argument that the hearing record contains hearsay and evidence that would be inadmissible at trial. What a crock!)

Not only that, a flurry of sealed documents have been filed in the case. Sorry, none of your business. Even requests to seal documents are sealed.

Why?

It might to some look as if Sanchez (and/or his lawyer) are trying to protect the politician(s) who showed up on his behalf, and who are rumored to have been City Council Member Ed Reyes and/or City Council Member Tony Cardenas, and perhaps others.

But that would be crass, cynical, and not at all like Mother Teresa, to whom some have compared Sanchez. You know, the truth shall make ye free, etc., etc.,etc.

Talk about judicial administration by the dark of the moon! Hey, I know, let’s seal the whole trial and just let Judge Real read from an envelope and announce a verdict, like the Oscars!

All the legal bureaucrats implicit in this charade can show up on the red carpet.

I can hear the snarky commentary now:

“OOOH, the new U.S. Attorney is wearing an absolutely daring two vent, European cut Navy blue pinstripe suit … oh, wait, it’s just the suit! How clever! And will you check out the alligator skin Manolo Blahniks lead defense counsel is wearing!”

Where are all the “civil liberties” advocates who would be going bananas if some common

Just when you thought Los Angeles couldn’t get any goofier or more self-defeating, an entrepreneurial former gang member turned “anti-gang activist” has started a gangland bus tour.

Alfred Lomas, 45, a former gang member and the creator of the tour ($65, lunch included), said this drive-by was about educating people on city life, while turning any profits into microloans and other initiatives aimed at providing gang members jobs.

Like the mudslides and wildfires that remind us the Los Angeles Basin was intended by its Maker for other than human habitation, this idea roared through the arid mind canyons of the Left Coast and swept thoughtful analysis into the Pacific Ocean like so much polluted runoff.

Not on the Tour

First, let’s be clear about one thing. Lomas’s “tour” is going to skip the fundamental reality of gang life in Los Angeles. You know, the inconvenient bits – drug and human trafficking, extortion, robbery, theft, armed violence, and most of all the visible toll of the dead (think funerals) and the limping, less visible trail of walking or wheelchair-bound wounded (think spinal injuries and those little plastic waste bag appendages).

This You Tube video fills in that weak point of the enterprise.

NOTE: Some idiot at You Tube disabled the video I had posted here some months ago — without warning — on the grounds that the images of actual gunshot victims in the video were merely shocking.

You Tube’s Google owners have learned well from their Chinese masters. I’ll find another venue to host the video and add the link back here when I get it.

Meanwhile, I took down my You Tube site in protest of this idiotic and heavy-handed censorship. Be warned.

I assume that one of the LA gangster world’s bought-an-paid-for-politicians got to YouTube, or some other thug-hugger. In a paraphrase of Gen. Douglas MacArthur: The Video Shall Return.

Superficial Rationales Sufficient for the Chattering Class

Rationale # 1. “Hey, it’s America, right?”

“What the heck, market what you got,” said Celeste Fremon, who writes the criminal justice blog Witness L.A. and has studied the city’s gangs.

Although she disputed whether several of the sites had a solid gang association, she said, “if it makes money for a good cause, more power to them.”

Rationale # 2. “Hey, his heart’s in the right place!”

Kevin Malone, a former general manager of the Los Angeles Dodgers who came to know Mr. Lomas through the center and is one of the financial backers of the project, said he might accept the criticism “if it was somebody other than” Mr. Lomas.

“But I know the guy’s heart,” he said. “He is not taking anything out. All he is doing is serving and giving. If that is exploitation, I hope somebody does that to me.”

Caregivers in Pediatric Intensive Care Units See Too Much of This from Gang Violence

“Everybody says we are the gang capital of the world, and that is certainly true, no denying that,” said the Rev. Gregory Boyle, who has spent decades trying to steer people out of gangs into legitimate work. “It’s hard to gloss over that. But there are two extremes we always need to avoid. One is demonizing the gang member, and the other extreme is romanticizing the gang.”

Snarky Rebuttals

With all due respect to Boyle, Malone, Lomas and Fremon, this is a bad idea on so many levels it makes LA’s most densely stacked freeway interchange look like a rural crossroads.

Snarky rebuttal # 1. Making money for a good cause? That’s the test?

Deep.

Let’s see, every whacked out terrorist in the universe – especially the ones who strap bombs into their underwear – thinks his or her cause is not only good, but also superior to every other cause on the planet.

Fund-raising for these “good causes” is intimately entwined in the depredations of global organized crime – included human trafficking, sex trafficking, drug trafficking, cigarette trafficking, traffic in phony products from lethal baby formula to fake designer jeans, and the bloody mayhem that accompanies all of the above. In fact, there is a school of serious thought that the war in Afghanistan is at least as much about the drug trade as the Taliban’s odd socio-religious tyranny.

Street Gangs are the Retail Outlets for Drugs in America

And by the way, the point of this spear of criminality comes right down to L.A.’s ubiquitous marijuana “clinics,” which are a wonderful system of retail outlets for the illegal production and trafficking in weed by the Mexican drug cartels and their affiliates, the Gangs of Los Angeles.

Just imagine – stick with me here, this is just a “mind exercise” – that your hero decided that running 13-year old child prostitutes up from Pueblo Pobre, Qualquiera, and vending them out in slam pads was a damned good way to raise funds for … well, a good cause, no profit here.

Pick a Hero ... Any Hero

See, if it were anybody else … love the sinner, love the sin? Certainly, no one, definitely not Fairly Civil, suggests that there is anything unlawful about the gang tour. But the logic is the same.

In fairness to Father Boyle, it is at least possible that he told The New York Times reporter that this gang tour was definitely a bad idea because it glorifies gang life. Reporters and editors sometimes cut out the sharp points in a “reader.” But the quote attributed to him came across as an “on the one hand, on the other hand” equivocation. What the modern news media call “even-handed.”

Well, be that as it may, here is a more pungent comment from another source:

Is there a danger of romanticizing or even glorifying the culture that has cost so many lives and caused so much heartache and tragedy to go along with the poverty that pervades the area? You think? There are a number of tours of past gangster lairs and stomping grounds from those occupied and traveled by Jesse James to John Dillinger to name only a couple. But those who made these locations infamous or famous are long gone and the thrill is far more benign than what one might expect where there still is ongoing horror.

Finally, it is instructive to look at this tour in the context of another gang-infested culture: Sicily, home of the original mafia, Cosa Nostra (not “La Cosa Nostra,” as the U.S. federal government mistakenly and irreversibly misnamed the American variant.)

It’s well worth reading the history and sociopolitical culture of this scourge. So much that is fundamentally bad about the Sicilian Mafia and its relation to civil life can be seen in the L.A. gang culture.

Self-marginalizing ethnic mythology and denial. “There is no mafia, it’s just a cultural thing we Sicilians have.” For nearly a century and a half Sicilian and other Italian chatterers – politicians, writers, academics – promoted the idea that there was no such thing as the mafia, in the sense of an organized criminal enterprise in Sicily. No, they said, “mafia” just means a prideful violence ingrained in the “character” of Sicilians. You know, like that Latino carnal and barrios stuff. We just can’t help ourselves. The gangsters, of course, loved this idea, and promoted it through the transmission belt of their “useful idiots” — even in the face of well-documented informants from as far back as the late 19th and early 20th centuries! The mob’s suckers included “intellectuals,” corrupted and gullible politicians, nitwit clerics, and the usual gaggle of do-gooders.

Corrupted members of church and state. To the shame of the Italian government and the Catholic Church, many politicians and priests were co-opted by Cosa Nostra. Some remain so to this day. Interestingly, a characteristic posture of the corrupted has been to publicly criticize the mafia and propose grandiose plans to attack it, while secretly undermining law enforcement efforts against the mobsters.

Attacking law enforcement and judicial authorities. One of Cosa Nostra’s classic tactics has been to attack – both physically and rhetorically – specific gangbusters in Italian law enforcement and in the Italian judiciary. In many cases, this was assassination intended to send a message that the mafia was above the law, in fact, was the law. In other cases, it was a smear campaign; a whispering, snickering current of innuendo designed and intended to undermine public confidence in law enforcement generally and in specific persons whose principled activities became a thorn in the side of the mob.

Culture of Criminality. The goal of socialization is to inculcate a “culture of lawfulness.” No matter what else one thinks of cops, there clearly are not enough of them to prevent every crime and stop every criminal enterprise. This is the job of that broader mass we call “culture” or “society.” In Sicily, the culture of lawfulness became a culture of unlawfulness. The vast mass of ordinary people came to accept the depredations of the mafia, because the very culture taught them there was nothing they could do about it. Many heroes of modern Sicily paid with their blood to reverse this perverse culture inversion.

Sound familiar?

You can read some of the best books about Cosa Nostra, the Sicilian mafia, and decide for yourself. My recommendations:

Los Angeles Police Detective and gang expert Frank Flores has been tossed on the griddle in the ongoing MS-13 racketeering (RICO) prosecution in Los Angeles.

But first, a big shout-out to Celeste Fremon and her WitnessLA blog, which was named “LA’s Best Police Blog” by LA Weekly. Although Fairly Civil and WitnessLA have different perspectives, Fremon and WitnessLA have done a great job of filling a vast vacuum — journalistic dark hole — left by the indifferent Los Angeles Times on this and other pivotal gang cases and programs.

Back to the subject at hand, the famous (or infamous) Alex Sanchez case.

According to the federal district court’s official minutes of a January 13, 2010 hearing – not (yet) sealed – Det. Flores will be grilled at a so-called “Daubert Hearing” in March:

The Court sets a Daubert Hearing on Detective Frank Flores’s expertise to testify for the government at trial as an expert witness on March 8, 2010 at 1:30 p.m., to be held in Courtroom 890 of the Roybal Courthouse.

“Criminal Minutes – General,” United States v. Jose Alfaro, United States District Court for the Central District of California, CR-09-466-R, filed January 13, 2010.

This could be huge, folks.

Just the Expert Facts, Please

Det. Flores has been in the defense lawyers’ sights from the beginning because it is his expertise that “connects the dots” among much of the cryptic gang talk on key wiretap tapes. He also can provide the “big picture” and overall perspective on MS-13 as a criminal enterprise – the core of a RICO conspiracy case.

Big gorilla of a question: Can the federal prosecution team keep Flores out from under the bus?

One may assume that the prosecution has other experts on its bench, but if Flores gets tossed, the defense will win a huge “moral” victory.

One may be assured, therefore, that this will be as rough and tumble a legal gang bang as Judge Manuel L. Real will tolerate in his courtroom. Let’s hope Judge Real keeps this one open to the public.

What the Heck is a “Daubert Hearing” and Why Care?

Fairly Civil is no expert on Daubert Hearings, but pulled together the following notes from a few websites devoted to the subject. (Links to sites are in the titles.)

What is a Daubert hearing? It is, in effect, a mini-trial within a trial, conducted before the judge only, not the jury, over the validity and admissibility of expert opinion testimony.

…

Actually, of the trilogy of cases, Daubert, Joiner, and Kumho Tire, discussed at this symposium, Kumho Tire is perhaps even more important than Daubert because of two central points in that decision.

- It clearly states that a Daubert determination of reliability must be made in all cases where expert evidence is offered, whether we call it scientific evidence or technical knowledge or skilled profession.

- The Daubert inquiry is to be a flexible one. All of the factors identified in Daubert that guarantee the kind of reliability the Supreme Court said was needed for admissibility of opinions based upon scientific knowledge, such as replicability, established error rates, peer review, and so on, do not necessarily apply to all forms of expert testimony with the same rigor. They apply with full force only to those disciplines to which such factors can be applied. Conventional wisdom holds that these factors cannot be applied, in the manner spelled out in Daubert, to handwriting identification or to many other forensic sciences where cases deal with problems that are unique and where the accuracy of a specific finding cannot be stated with a measurable statistical degree of confidence.

Prior to the adoption of the Federal Rules of Evidence, all federal and most state courts followed the “Frye” test to determine the admissibility of scientific evidence. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held that the Federal Rules of Evidence, and in particular Fed. R. Evid. 702, superseded Frye’s “general acceptance” test.

Fed. R. Evid. 702 contains two requirements. First, the evidence must be reliable, or in other words, trustworthy. Trustworthiness guarantees that the information is supported by scientific methods and procedures. Second, the evidence must be relevant. The criterion of relevance has been appropriately described as one of “fit.” To satisfy this requirement, the proffered testimony or evidence must be sufficiently tied to the facts of the case that it will help the jury in resolving a factual dispute. “Rule 702’s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.”

Faced with a proffer of expert scientific evidence, the trial court is charged with the role of “gatekeeper” and must initially determine, pursuant to Fed. R. Evid. 104(a), whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This decision demands an evaluation of whether the reasoning or methodology underlying the testimony is scientifically valid and can be applied to the facts at issue.

In Daubert the Supreme Court provided four nondefinitive factors that trial courts should consider in making this determination. First, the court should evaluate whether the theory or technique can be and has been tested. Second, the court must determine whether the theory or technique has been subjected to peer review and publication. Third, the court should consider the known or potential rate of error. Finally, the court should evaluate the general acceptance of the theory in the scientific community. The Seventh Circuit has added an additional consideration: whether the proffered testimony is based upon the expert’s special skills.

In addition to these four Daubert factors, other safeguards exist to protect against the admission of unreliable or irrelevant scientific evidence. Federal Rules of Evidence 703, 706 and 403 each provide an independent check. Procedures familiar to every trial attorney, such as vigorous cross examination, the presentation of contrary evidence, and careful instruction of the jury on the burden of proof, also help guard against the acceptance of suspect scientific evidence. Finally, the Federal Rules of Civil Procedure prevent cases from going to trial where the evidence is unreliable.

In the following discussion one caveat is called for: We do not suggest that hearings on reliability and relevance are inherently inappropriate. Daubert challenges may, in fact, reflect attorneys’ confidence in their own experts’ views and justified suspicion of the experts’ opinions on the other side. Thus, in a best-case scenario, the challenge leads to achievement of a just and favorable outcome, obviating the expense and uncertainty inherent in a trial. Moreover, when an opposing expert is proffering innovative testimony, the ethics of practice, concerns about legal malpractice, and concerns about claims of ineffective assistance of counsel may require such a challenge.

In contrast to these valid concerns, when the attorney feels that a case is weak or that the client is unattractive to potential jurors, the attorney may want to see if the opposing expert can be “knocked out of the box” from the start by a Daubert challenge. While this ploy poses uncertainties of its own, the effort may be economically justifiable to the retaining attorney.

Delay

The Daubert hearing is not unique in being subject to abuse. Many other valuable safeguards of the fundamental fairness of the legal system exist, such as insuring that a defendant is competent to stand trial before facing the rigors of the adversary system. Yet, in our experience in Massachusetts courts, a motion to invoke this useful safeguard can be and has been used as a delaying tactic to permit the attorneys to prepare the case more thoroughly, to set the stage for a later insanity plea, or even to foster the hope that witnesses will become less sure about recalled testimony.

Similarly, a Daubert hearing may be requested by one side or the other—even when the relevant science is basic, established, and non-controversial—as a comparable delaying tactic designed to secure some advantage by the delay, although, as the law evolves, such challenges to established science may become less common. In our experience, challenging the use of even absolutely standard psychological testing is a common ploy in this category.

The Dry Run

By providing a picture of the expert in action under cross-examination, expert depositions commonly serve as “dry runs” for trial preparation. However, Daubert hearings have the advantage of providing a second opportunity to probe the expert, as well as to obtain an otherwise unavailable assessment of the trial judge’s attitudes toward the case. In those jurisdictions where depositions do not occur or are not allowed in civil or criminal cases, thus depriving attorneys of the opportunity to perform a dry run of the cross-examination of the opposing expert, a Daubert hearing may serve the purpose of obtaining an equally valuable advance look at the opposing experts’ opinions, bases, methodology, and courtroom demeanor. The resultant data can be put to very good use by the attorney in case preparation, mastery of the relevant literature, and the like.

Impeachment: Laying a Foundation

Just as moving for an unnecessary examination for competence to stand trial may aid the attorney in laying a foundation (if only in the public’s mind) for a later insanity plea, moving for an unnecessary Daubert hearing may lay the foundation for later efforts to impeach the expert’s reasoning on scientific grounds. Even if the expert’s opinion is ultimately not excluded, the knowledge gained in the process (the dry run suggested in the prior section) may be helpful to the attorney in designing more effective cross-examination for trial.

Rattling the Expert

The motion for a Daubert hearing may constitute no more than an attempt at simple harassment of the experts, designed to shake their confidence in their own testimony by a threshold challenge to their approach, methodology, reasoning, and professional acceptance of the experts’ theory of the case.

Fatigue Factors

In a related manner, a mid-testimony hearing may be attempted on a specious issue, to overextend the expert’s time on the witness stand, perhaps interrupting the flow of case-related testimony that the jury hears. This approach may generate sufficient distraction and breach of concentration in the jury to obscure the gist and impact of the expert’s testimony.

Economic War

Because a Daubert hearing involves costs for the time and participation of the parties and assistants (e.g., stenographers), the hearing may be requested by a large, rich firm, to drive up the costs for an opposing small, poor firm and thus to discourage or render more difficult the latter’s participation in the suit.

Similarly, because of cost restrictions from the client or insurers, a law firm unable or unwilling to hire its own reputable expert may be forced to put its efforts into attempting to disqualify the other side’s expert through Daubert challenges. Theoretically, such an approach may also serve to create a record designed to refute a later claim for legal malpractice in this situation. An attorney’s specious introduction of standards for reliability and relevance (that no expert could meet) in this setting may also constitute an attempt to excuse his or her failure to retain an appropriate expert.

Shooting the Messenger

A highly unusual twist in the Daubert question has occurred with one of us (H.B.) when an attorney hired several experts, but one of them did not present a favorable opinion after review. The attorney presented that expert’s opinion to the other side in a distorted way that invited a Daubert challenge, which was feebly and ineffectively resisted by that attorney. The attorney then used the successful challenge to rationalize not paying the expert for work already done, based on the alleged failure of the opinion to meet the standard.

Federal Judge Manuel L. Real has granted bail to Alex Sanchez, the former gang member turned anti-gang activist who has been accused in a federal racketeering (RICO) indictment of being a “secret shot-caller” for Mara Salvatrucha (MS-13). [To follow the trail of a series of earlier posts on this fascinating case, start here. You will eventually land in the Land of Oz. ]

Around 11:30, at the end of the closed hearing that began at 10 a.m. Alex Sanchez attorney Kerry Bensinger came out of the federal courtroom to talk to Sanchez family and a very, very small handful of supporters, whom he drew into a side room and broke the news. U.S. District Judge Manuel Real had granted Alex Sanchez bail.

One thing that can be said for the staggeringly quirky Real, he continues to surprise. This time the surprise was a good one for Sanchez and family.

The bail amount is set at $2 million. It is to be divided into $1 million in properties, $1 million in surities.

Since Sanchez supporters and family have already gathered $1.4 million in property, and $1 million in surities, “it’s only a matter of the paperwork,” said Monica Novoa, a Homies Unidos board member who is very close to the family and thus was in the room.

The extraordinary bail hearing was closed to the public. It followed the filing of a mysterious sealed document by Sanchez’s lawyer, Kerry L. Bensinger. Contents of that filing are not available on the public record.

Judge Real apparently felt the federal Ninth Circuit Court of Appeals breathing down his back and called in a panel of independent gang experts to help him pin down the facts relevant to Sanchez’s bail request. These have almost nothing to do with the defendant’s guilt or innocence, but whether he presents (1) a risk of flight, or (2) a threat to others.

According to papers filed in the federal district court, prosecutors made available three expert witnesses. They were:

Former federal prosecutor Bruce K. Riordan, now Director of Anti-Gang Operations for the L.A. City Attorney’s Office. Riordan is also Chief of the Gang Division and Deputy Chief of the Criminal Division.

FBI Supervisory Special Agent Robert W. Clark, Acting Special Agent in Charge of the Los Angeles Field Office.

NOTE: This document — which was publicly available yesterday at the time this blog post was first written — has now been sealed. Oh, well. Good thing I printed it off!

It is possible that Bensinger’s mysterious sealed document was the defendant’s list of experts, some or all of whom are rumored to be politicians and public officials who may not have wanted to be identified as speaking on Sanchez’s behalf. Is there such a thing as a spinal implant? Or integrity transfusion? Perhaps this is something that the indefatigable activist Tom Hayden — who is given to dark conspiratorial theories when a matter involves the government — can investigate and write about in the public interest.

In any event, Judge Real was demonstrably persuaded that Sanchez was entitled to be released.

At least some observers have speculated that prosecutors made a decision to ease back on the throttle regarding the Sanchez bail question. The theory of this line of reasoning is that prosecutors realized that they had a big problem with the factual scenario they had relied on to implicate Sanchez in an intra-gang hit — to wit, the government may have incorrectly identified a key participant in a wiretapped phone call.

The call on the table, the reasoning continues, was either to continue pushing hard to keep Sanchez locked up and risk seeing the case taken away from Judge Real by the Ninth Circuit, or to reform the skirmish line and perhaps bring in some fresh troops. A few new strategic calls may also be made.

Most interesting in the short run will be to see what, if anything, the Los Angeles Times prints tomorrow. Any way you slice the Sanchez case, it is a world class story that any of the old style newspaper men would have given an arm for: if Sanchez is truly innocent, he has been the victim of terrible mistreatment. If he is guilty, he pulled off a scam that makes Ponzi scheme artist Bernie Madoff look like an amateur.

But the Times, one of the few interesting newspapers left in America, has studiously ignored the case to date.

In Happier Times, Sanchez Enjoyed A Saintly Aura Comparable to that of Mother Teresa

UPDATE ON LOS ANGELES TIMES‘ COVERAGE

No surprise here. No story. Apparently, LA Times editors couldn’t find their butts in the dark with both hands and a flashlight.

Alex Sanchez's Defense Team Got Nowhere in Appeal to Ninth Circuit Court of Appeals and Blew Attempted "Hail Mary" Play Around Judge Manuel L. Real. The Feds' Ball-Control Game Plan Appears to be Working.

Question: Is a dropped shovel pass considered an incomplete pass or a fumble?

Answer: A forward pass, is a forward pass, is a forward pass. It can be thrown overhand, underhand, one-handed, two-handed or between your legs. The direction it travels is the only deciding factor as to whether it’s forward or backward.

LATER NOTE: Alex Sanchez was granted pre-trial release on January 13, 2010. See story here.

Alex Sanchez’s lawyer has played a fan-rousing first-quarter game of razzle-dazzle legal football trying to spring the accused Mara Salvatrucha (MS-13) “secret shot caller” from jail while he awaits trial.

Forget the cheers and pom-poms. The case is right back where it started — in the forbidding courtroom of octogenarian federal district Judge Manuel L. Real.

Underhand, overhand, fumble or incomplete pass, call it what you will. A desperate maneuver to get the controversial case reassigned to a different judge blew up like a busted shovel pass hit by a play-reading, line-backing locomotive.

“Few people know more about the subject than Tom Diaz and no single book tells the whole story better than No Boundaries. If you really want to know what organized crime in America looks like today, then read this alarming book.”

Full background on the federal racketeering (RICO) indictment, arrest, and incarceration pending trial of Sanchez — an admitted gangster supposedly reformed and turned anti-gang activist, now accused by the feds of being a “secret shot-caller” — can be found in all of its tortured procedural history here, here, and here.

"Nothing Personal About that Flamethrower, Your Honor."

As Fairly Civilreported in detail here, the appellate brief filed last month on Sanchez’s behalf before the Ninth Circuit Court of Appeals torched Judge Real, the government, its witnesses, and the handling of the case. The brief demanded removal of Judge Real from the case because — paraphrased in layman’s terms — he “just doesn’t get it.” The defense lawyer’s next appearance before Judge Real should be … um … interesting — a textbook case, perhaps, of “nothing personal about that flamethrower in the Ninth Circuit, your honor.”

Incredibly, while Sanchez’s appeal was still pending, startling “news” broke that the case had been reassigned to another judge. Sanchez’s many fans popped the corks on the champagne and celebrated an early Christmas.

See how this series of developments unfolded by checking out the excellent(if unabashedly pro-Sanchez) WitnessLA blog here.

This news energized aging California hippy activist and prolific gang fiction writer Tom Hayden like a straight shot of Geritol. Hayden fired up his rhetorical flying saucer on the tarmac over in Area 51, and beamed an ecstatic account of the thrilling development onto the pages of The Nation magazine.

Premature excitation, it turned out.

The case was promptly — and somewhat curtly — reassigned back to Judge Real!

Never one to let the facts get in the way of a good story, Hayden jumped back into his intergalactic travel machine and fired an email straight from the radical 70s, filled with predictably dark imaginings about the manipulation of the legal system, the sinister hidden hand of LAPD corruption tainting the federal legal system …. yadda-yadda, yadda-yadda.

Smoke ‘em if you got ‘em. But try not to inhale.

Here, is WitnessLA’s recitative on Hayden’s petulant emission:

Hayden sent around an email Tuesday night containing details and reactions. It read in part:

“The turn of events will raise new suspicions about alleged manipulation of the proceedings which began six months ago with Sanchez’ arrest on gang conspiracy charges. Sanchez, a well-known gang intervention worker who helped expose the Los Angeles police Rampart scandal a decade ago, asserts his innocence in the case. He is being held without bail at a federal prison in Los Angeles.

As of 4:30 Tuesday afternoon, no order reversing the transfer had been received by defense counsel, and no explanation offered for the unusual chain of events.

The order surprised and pleased the Sanchez defense team. His supporters, organized as http://www.wearealex.org, assert that Sanchez is being railroaded and denied any semblance of a fair trial. Sanchez’ court-appointed counsel, Kerry Bensinger, argued in a recent appeal to the Ninth Circuit that the case should be remanded to another judge.

Why the December 4 transfer order was withdrawn less than a day after it was made public will raise questions about the inner workings of the judiciary itself.”

Uh, huh. Something like that.

Or to put it another way: Whiskey Tango Foxtrot???!!

Or, to put it yet another way, “Beam me up, Scotty.” In fact, the assignment-reassignment is not puzzling at all.

A complete explanation was then, is now, and will be available in full view, on the public record, in the federal court house in Los Angeles for any journaliste or enfant terrible curious — and energetic — enough to bring actual facts to the question. Anyone without the means to actually get down to the clerk’s office (take a bus or ride a bike) can go onto an amazing thing called “the internet” ( a series of interconnected tubes) and dial into reality.

More Geritol, Ma … please!

The Case of the Mysterious Premature Reassignment Explained

Where to start?

Oh, wait, I know!

How about with the actual court order reassigning the reassignment? Brilliant idea!

Here is the complete text of the “Order Returning Case to the Calendar of Judge Manuel Real,” United States v. Jose Alfaro, United States District Court for the Central District of California, Docket No. 09-466-CAS, filed December 8, 2009:

As Chair of the Case Assignment and Management Committee, I have been advised by United States District Judge Christina Snyder that she inadvertently signed a transfer order that contained the representation that the present criminal case purportedly “arise[s] out of the same conspiracy, common scheme, transaction, series of transactions or events” that were the subject of CR 05-00539. Apparently the order was generated when a defense attorney submitted a belated notice of related case status. That notice focuses on a case handled by Judge Snyder involving one of the numerous defendants in the present case. Judge Snyder advises that she was unaware of the status of the above-captioned action, does not believe that the relationship of the cases warrants transfer and has referred the matter to me for a determination as to whether the case should be returned to Judge Real.

Even if there is some connection between these two cases, which I note were filed four years apart, the current case is at such an advanced stage and Judge Real has spent such substantial time and effort on the matter that no judicial economy would be achieved by a transfer at this late date. Indeed, a transfer at this point would undermine the very objectives that provide the reason for the rule. Accordingly, the transfer to Judge Snyder is VACATED and the matter is ORDERED to be returned to Judge Real’s calendar for all further proceedings.

IT IS SO ORDERED.

DATED: December 8, 2009

[Signed]

Judge Gary Allen Feess

Chair, Case Assignment and Management Committee

[Judge Snyder’s original order is also available. It is simply a “check the box and sign” order form, CR-59 (12-07), the kind of thing some judges whiz through while pretending to listen from the bench to bloviating counsel. It states in relevant part: “I hereby consent to the transfer of the above-entitled case to my calendar, pursuant to General Order 08-05.”]

Um, plainly, this was an attempt at “judge shopping” by “a defense attorney,” who is not named and may or may not have been Sanchez’s counsel:

We can define “judge shopping” as an effort by a lawyer or litigant to influence a court’s assignment of a case so that it will be directed to a particular judge or away from a particular judge. The adversary usually does this to gain partisan advantage in a case (e.g., to steer it to a judge who is likely to impose a more lenient sentence in a criminal case…)

Memorandum by David C. Steelman, National Center for State Courts, January 21, 2003.

Nice try, Anonymous Mouthpiece!

But … no gain on the play. Ball stuffed. First down, government’s ball.

Three questions linger, and their answers clear up the rest of the mystery.

What is “the rule” to which Judge Feess refers in the order?

What prompted Judge Snyder to refer the matter to Judge Feess?

What was the allegedly “related” case the unnamed defense counsel was so anxious to hook the present case to?

No Wizard Behind the Mysterious Green Curtain -- Just a Boring Rule

Well, for anyone who is interested in how things actually operate behind the sinister green curtain, here is the relevant text of the rule, General Order No. 08-05. It pretty well lays out the boring, non-conspiratorial routine procedure — including safeguards — that goes on in such a case of attempted judge-shopping:

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA, GENERAL ORDER NO. 08-05, ASSIGNMENT OF CASES AND DUTIES TO JUDGES

…

11.0 RELATED CRIMINAL CASES

11.1 NOTICE OF RELATED CASES

It shall be the responsibility of counsel to promptly file a Notice of Related Cases whenever a criminal case previously filed and one or more informations or indictments later filed:

a. arise out of the same conspiracy, common scheme, transaction, series of transactions or events; or

b. involve one or more defendants in common, and would entail substantial duplication of labor in pretrial, trial or sentencing proceedings if heard by different judges.

11.2 PROCESSING OF PROPOSED TRANSFER ORDER

Whenever counsel files a Notice of Related Cases indicating that any one or more of the above circumstances set forth in Section 11.1 exist, the Clerk shall prepare a proposed transfer order which shall be presented to the transferee judge and processed in the same manner as are related civil cases under Section 5.0 of this General Order.

…

5.2 PROCESSING OF PROPOSED TRANSFER ORDER

…

The Clerk shall also simultaneously provide an informational copy of the proposed transfer order to the judge randomly assigned to the case later filed (the transferor judge).

If the transferee judge approves the transfer, the case shall be transferred to the calendar of the transferee judge. If the transferee judge declines the related case transfer, the case shall proceed as originally assigned on the calendar of the transferor judge.

If the transferor judge disagrees with the decision of the transferee judge, the transferor judge may appeal the decision to the Committee. The Committee shall determine whether the cases are related.

Z-z-z-z. So much for the first two questions. No proposed transfer was ever going to just slip by Judge Real in the dark of night. Whether Judge Snyder figured it out on her own, or got a friendly call from Judge Real and/or the U.S. Attorney’s office is immaterial. Once a question was raised, the matter was bound to go to the Case Assignment and Management Committee.

So, what was the case the enterprising defense lawyer selected? For that answer, one must go to Docket No. CR 05-00539 in the same federal courthouse (using the inter-tube thing or skate-boarding to get there).

That docket recounts the case of one Juan Miguel Mancilla, aka “Gato,” a gangster who was arrested in one of the first sweeps by the FBI’s MS-13 National Gang Task Force. Mancilla was charged with trafficking in methamphetamine. His prosecution was handled by then-assistant United States Attorneys Bruce Riordan and Scott Garringer. In April 2006, “Gato” copped a guilty plea and was sentenced to 97 months in prison. The case has been closed since then.

When the current indictment was handed up in June, Mancilla was also named as a defendant, this time on racketeering charges, and was accordingly arrested while still in federal custody. Whoever the enterprising defense counsel was who filed the transfer motion with Judge Snyder was trying to pin the elephant of this case onto the tail of the sleeping donkey of the Mancilla case.

End of mystery.

Oh, Yeah, and About the Ninth Circuit

The government filed a determinedly sober brief in response to Sanchez’s flamethrower. Many observers believe that Sanchez’s argument that one of the participants in a series of calls was misidentified is possibly correct, and has given prosecutors a bit of grief. But, the government’s answer — so what, the guilty party confessed independent of the wiretap? — has so far trumped the assertion, especially in light of the hundreds upon hundreds of hours of other wiretaps and informant material in the case.

The government’s brief, however, contained these interesting assertions, which go beyond the four wiretapped phone calls on which the case has been focused in the bail hearings:

Sanchez had contacts with gang members in 1999, when he arranged a meeting of the shotcallers of the Normandie clique of MS-13 in Los Angeles to negotiate a division of their narcotics distribution enterprise. Sanchez was able to organize this meeting because he was a senior Normandie shotcaller who had been one of the founders of MS-13 in Los Angeles and the former MS-13 representative to the Mexican Mafia. Sanchez has continued to be active in gang business; among other things he has directed its distribution of narcotics and collected proceeds of its narcotics trafficking. Sanchez was intercepted on wiretap calls in 2000, 2001, and 2006 and on recorded prison calls in 2008, talking about MS-13 business.

“Government’s Opposition To Defendant’s Appeal From Detention Order; Memorandum Of Points And Authorities,” United States Court Of Appeals For The Ninth Circuit, Docket No. C.A. 09-50525, filed December 3, 2009.

On December 22, 2009, three Circuit Judges from the Ninth Circuit sent Sanchez’s case back to the federal district court, meaning to the courtroom of Judge Real.

Sanchez Case Is Back to the Future With Judge Manuel L. Real: "Good Morning, Counsel. Now, Where Were We?"

Alex Sanchez — the admitted former Mara Salvatrucha (MS-13) gangster turned Los Angeles anti-gang worker, now accused by the feds of being a “secret shot caller” — has been repeatedly denied pre-trial release. Now his lawyer, Kerry R. Bensinger, has taken the matter to the United States Court of Appeals for the Ninth Circuit in a take-no-prisoners brief that (in nice, polite lawyer language) flames trial Judge Manuel L. Real.

The brief scorches a few other targets, including the government’s trial lawyers and the principle MS-13 expert witness in the case, Los Angeles Police Department Gang Detective Frank Flores. Flores’s testimony about the meaning of wiretaps (Sanchez allegedly directing a “hit” on a renegade gang member) was key in the detention hearings. The defense claims that the government not only got one of the key phone call participants wrong, but Flores misconstrued what happened during the calls.

Judge Manuel L. Real

But Bensinger focuses his flamethrower on the 85-year old Judge Real, stating, “At a minimum, the matter should be remanded for a detention hearing before a different judge.”

If the judge did anything right, it escaped counsel’s notice.

Reading between the lines, Bensinger is conveying to the appeals court the message that — in his view — Real for whatever reason or reasons is confused or willfully obtuse about what the federal law requires in a bail (“detention”) hearing. In short, the brief argues that the trial judge just doesn’t “get it.”

The 32-page document landed in the appeals court docket less than a week after that court issued an opinion and order applying its own flame to Judge Real. (Bensinger has more to say on the matter — he asked the higher court to allow him to file additional material.) Here is theLos Angeles Times on the matter involving Real and the 9th Circuit (November 14, 2009):

A federal appeals court Friday criticized U.S. District Judge Manuel L. Real for his handling of $33.8 million entrusted to him for victims of the late Philippines dictator Ferdinand Marcos, calling his accounting “curious” and “filled with cryptic notations” that failed to show what happened to the money.

The three-judge panel of the U.S. 9th Circuit Court of Appeals ordered a new accounting of the disputed assets by a different judge — a rare act of implied censure that Real has now endured at least 11 times in his long judicial career.

“Few people know more about the subject than Tom Diaz and no single book tells the whole story better than No Boundaries. If you really want to know what organized crime in America looks like today, then read this alarming book.”

The stakes are high for Sanchez in an already complicated case: “Now five months since his arrest, Mr. Sanchez faces an extended pretrial detention as the parties believe this case will not be ready for trial before December 2010.”

Unstated is the fact that careers will be on the line in the case. Indicting Alex Sanchez was the rough equivalent of indicting Mother Teresa. If the Sanchez case flames out, the careers of more than one or two on the government’s side will hit the silk.

The following are unexpurgated excerpts from the appeals brief on behalf of Sanchez. (“Appellant’s Memorandum of Law and Facts In Support [of] Appeal from Detention Order,” United States v. Alex Sanchez, United States Court of Appeals for the Ninth Circuit, Docket No. 09-50525, filed November 20, 2009.) Fairly Civil has inserted a minimum of explanatory background. Additional materials on the case can be found in posts here, here, and here.

The government has ten days to reply.

The Basic Claim — Sanchez Was Denied a Fair Hearing

The core of Sanchez’s appeal is that he was denied a fair hearing on the only issues relevant to whether he should be released, which are (1) is he a risk of flight, and (2) does he present a threat to persons or a community? Instead, the brief claims, Judge Real essentially held a “mini-trial” on whether Sanchez is guilty of the offenses with which he is charged.

This appeal from an order of pre-trial detention presents the question whether a defendant has been denied his right to a “full-blown adversary hearing” … when the district court limited the hearing to whether the government possessed evidence of the defendant’s guilt, foreclosed the defense from rebutting the government’s case with contrary evidence, shifted the burden of persuasion, ignored evidence relevant to flight and lack of danger and made only a “conclusory finding” misapplying the statutory presumption.

The Life of Alex

In Happier Times, Sanchez Enjoyed A Saintly Aura Comparable to that of Mother Teresa

Naturally enough, the brief sketches a factual review of a man grievously wronged by arbitrary and misdirected government conduct:

Mr. Sanchez quit gang life nearly 15 years ago, beginning a journey of redemption leading him to become one of the foremost anti-gang interventionists in the United States. In 2006, he became the Executive Director of Homies Unidos, an organization dedicated to extricating youths from gangs and brokering and maintaining peace in communities afflicted by the scourge of gang violence.

On June 24, 2009, however, Mr. Sanchez, a long time resident of Los Angeles and the 38-year-0ld father of three, was arrested at his home and taken into custody on an indictment charging 24 defendants with various crimes in connection with alleged activities of the Mara Salvatrucha (“MS-13″). Within days of his arrest, over 100 social workers, professors, politicians, clergy, law enforcement and former gang members from around the country raised a chorus of support to release Mr. Sanchez from custody, all attesting to his good character, commitment to peace and ties to the community. This overwhelming support included over $2.5 million dollars in bail pledges and property.

At the detention hearing, the government claimed a chest tattoo indicated Mr. Sanchez had not quit the gang and four phone calls where Mr. Sanchez mediated a non-violent resolution to an intra-gang dispute supposedly evidenced a plot to kill one of the disputants. Announcing “the only determination I have to make on this motion” is “whether or not Mr. Sanchez was there” and “what they were discussing,” the district court precluded Mr. Sanchez from rebutting the government’s evidence about the significance of his chest tattoo while refusing lay and expert testimony contradicting the government’s interpretation of the calls. Focused exclusively on whether there was evidence of Mr. Sanchez’s guilt, and ignoring evidence of Mr. Sanchez’s extensive ties to the community and reputation as a tireless and effective gang interventionist and violence prevention advocate, the district judge misapplied a statutory presumption, shifted the burden of persuasion, and ignored overwhelming evidence that Mr. Sanchez presents neither a flight risk nor a danger to others.

The government stressed that “physical evidence,” in the form of a chest tattoo, showed Mr. Sanchez was still active in the gang. Rosemarie Ashmalla, the Executive Director of the agency that removed Mr. Sanchez’s other tattoos, however, was prepared to testify that a chest tattoo was not evidence of ongoing gang affiliation because the tattoo removal program “had a policy of only removing visible tattoos.” Ms. Ashmalla would have affirmed that most gang tattoo removal agencies, including hers, “do not generally remove non-visible tattoos, absent extraordinary reasons.” As the head of an agency dedicated to removing gang tattoos (and the agency that removed Mr. Sanchez’s visible tattoos), Ms. Ashmalla was in a far better position that the prosecutor to explain the significance of a residual chest tattoo. Rejecting her testimony was error.

A focus of the case so far has been the government’s wiretaps of four calls in which Alex Sanchez certainly takes a leading role. But the crucial question has developed to be: was that leading role as a mediator and peace-maker or as a “shot caller” pushing the conversation to the ultimate murder in El Salvador of one Walter Lacinos (aka Camaron) by a gangster known as “Zombie”? A close second is whether the government got the wrong “Zombie.”

Of critical importance, given the district court’s focus on “the content of these [four wire-tapped] conversations” is the district court’s refusal to permit Father Greg Boyle’s testimony. Fr. Boyle is the Executive Director of Homeboy Industries, the largest gang intervention program in the country, and a nationally recognized gang expert knowledgeable in gang language, interactions and “codes.” After listening to the calls and reviewing Det. [Frank] Flores’s declaration re-interpreting the calls and the prosecution’s arguments based thereon, Fr. Boyle concluded that, rather than corroborating a murder plot, Mr. Sanchez’s statements reflected a gang mediator’s peacemaking efforts.

The brief argues that the judge erred in declaring Father Boyle’s statement not “relevant” to the questions in the detention hearing — a specific case of the judge “not getting it.”

The Court Erroneously Rejected Relevant Defense Evidence Explaining the Context of the Conversations in the Four Wire-tapped Calls.

The district court erroneously rejected the testimony of Sonia Hernandez, a witness who knew the government (and Flores) misidentified one of the key participants in the calls, distorting their interpretation of the statements made therein.

…

The government got its facts wrong. Although both Hernandez and Bonilla used the name “Zombie,” the person who killed Camaron was not the person Mr. Sanchez spoke to on May 7. Sonia Hernandez would have identified her brother’s voice (not Bonilla’s) as the Zombie on the May 7 call with Mr. Sanchez.

By authenticating her brother’s voice on the May 7 call, Ms. Hernandez would have confirmed Mr. Sanchez had not talked “to the person who ultimately did, in fact, carry out the murder in El Salvador,” but to another person also nicknamed “Zombie.”

The Court Shifted the Burden of Persuasion

The brief also addresses a technical point that involves the difference between the “burden of production” (producing some favorable evidence) and the “burden of persuasion” (persuading the fact-trier that the evidence is true). Essentially, Bensinger argues again that Judge Real confused the two:

“The burden of persuasion regarding risk-of-flight and danger to the community always remains with the government…” As now-Justice Breyer explained, even where the nature of the charges gives rise to “a rebuttable presumption that ‘no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community,” [citing 18 U.S. Code, Section 3142 (e)] this presumption only served to “shift the burden of production” and require the defendant to introduce “some evidence” to the contrary.

The brief argues that Sanchez met this burden of production with witnesses who could rebut the government’s factual assertions about the tattoo and the calls, his agreement to “many restrictions on his liberty,” and the character witnesses and property-owners willing to support his release.

The brief also points out additional problems with Judge Real’s ruling: he did not provide the requisite written statement of reason for Sanchez’s detention, including findings of fact, and erroneously placed undue weight on evidence of guilt, as opposed to risk of flight or danger.

Despite its refrain that “this is not trial” — invoked only to exclude defense evidence contradicting the prosecution’s case — the district court transformed the detention hearing into a mini-trial on the merits of the charges…Rather than conduct an inquiry focused on whether the release of Mr. Sanchez posed a clear and present danger to any person or community, the district court devoted himself to prejudging the evidence of guilt even though, as now-Justice Kennedy reminded, “the statute neither requires not permits a pretrial determination that the person is guilty.”

This Case Should Be Reassigned to a Different Judge on Remand

The brief ends up with the following request, not coincidentally accompanied by a footnote referring to other instances in which the Ninth Circuit has corrected Judge Real:

Judge Real rejected Ms. Hernandez’s testimony refuting the government’s claim that Mr. Sanchez instructed Bonilla to kill Camaron because it was “totally irrelevant.” Judge Real excluded this patently relevant evidence not on technical legal grounds but because he failed to appreciate its logical relevance to the crucial issues at hand. The same is true with respect to Fr. Boyle’s testimony. Even if the matter were remanded for renewed consideration, there is little chance Judge Real will accord this evidence it proper weight, simply because the disputed evidence has been found relevant and admissible…[He has already] declared that it is entitled to no weight whatsoever. At a minimum, the matter should be remanded for a detention hearing before a different judge.

Fairly Civil looks forward to reading and posting excerpts from the government’s reply to this brief.

Virginia Tech Shooter Cho Seung-Hui, Like Major Nidal Malik Hasan at Ft. Hood, Used a Killing Tool Widely and Easily Available on the U.S. Civilian Market to Decimate Virginia Tech Campus -- The High-Capacity Semi-Automatic Pistol

Fairly Civil‘s last post on the alleged plot by Mara Salvatrucha (MS-13) leaders in El Salvador to assassinate an Immigration and Customs Enforcement (ICE) agent (“John Doe”) in Queens, New York, brought a skeptical response from some law enforcement quarters. Here is the core of the post, which includes excerpts from an affidivait accompanying a request for an arrest warrant:

According to an affidavit filed in support of an arrest warrant, an MS-13 member specifically tasked to kill the ICE agent described the plot to federal agents. The gangsters were looking for an AK-47 or M-16 assault rifle to do the job.

The post also referred to a similar alleged MS-13 plot to kill LAPD gang detective Frank Flores, described in “The Plot to Whack a Cop,” which can be found here.

But retired Los Angeles Sheriff’s Department gang Sergeant Richard Valdemar questions in a private communication to the author whether these two incidents show a pattern, much less a shift, in MS-13’s abilities and intent regarding attacks on law enforcement officers:

Funny how in the many years (1993-2004) working with the FBI Task Force with numerous agents and agencies on the MS they would now fix on one LAPD Officer Flores in Los Angeles and one “John Doe” the ICE man in New York, and they can’t seem to find a AR-15 or AK-47 to do the dastardly deed. I think there have been a lot more effective cases and cops doing serious damage to the gang over the years than these two.

More likely …an informant, or couple of informants, got twisted in Los Angeles and New York, and gave up their own clique homeboys with information that they knew the cops would value (“they plan to kill a cop”). This kind of talk goes on a lot in the gang world, but the gang members don’t always go beyond the talking stage. And you, who has studied the trafficking in weapons associated with gangs (transnational gangs especially), can’t seriously buy the …”we can’t find an assault rifle to use” excuse.

Be that as it may, the cases raise an interesting question. What kind of gangster or would-be terrorist can’t find the tools to do the job in the United States?

The gangsters in the ICE case allegedly were having problems finding their weapons of choice, i.e. a “fully automatic” M-16 or AK clone. This echoed the case of would-be terrorists in Boston, posted here, who gave up a plot to shoot up shopping centers because they also could not obtain machine guns:

Fortunately, however, these jihadists thought they need machine guns, i.e., fully automatic weapons — hold the trigger down and the gun will fire until ammo is exhausted – to do the job. They gave up when they found out they could not obtain machine guns. However, knowledgeable experts understand that controlled fire from semiautomatic weapons — pull the trigger for each round — is at least as lethal and often more lethal than machine gun fire.

One might conclude that both of these cases simply reflect fortuitous ignorance on the part of would-be plotters. Knowledge of firearms is not — as too many voices active in public fora apparently assume — easily received wisdom. There is a stunning array of gun and ammunition types, with diverse capabilities, pros and cons, easily and widely available on the U.S. civilian gun market — not to mention the widespread criminal traffic in guns. Any terrorist or gangster who complains about not being able to find the right tool for the job at hand is either a pea-brain or a poseur. Not that there’s anything wrong with that! But how long can we count on stupidity?

On the other hand, three successful mass shooters demonstrated that with firearms easily obtainable on the U.S. civilian market, a little bit of knowledge, premeditation, criminal intent, mental imbalance, and/or jihadist inspiration can be easily transformed into mass blood and carnage on … one wants to say “soft targets,” but how does one classify a U.S. Army fort?

Major Hasan's Pick for Soldier-Killing Machine -- FN's FiveseveN -- is Known in Mexico as the Matapolicia, or "Cop-Killer."

FN Herstal’s FiveseveN (cute name, eh?) semiautomatic pistol fires a small caliber round at very high velocity. It is plain and simply a “vest-buster.” The proprietary round-handgun combination is one of the most popular firearms smuggled by firearms traffickers into Mexico, where it is known as the matapolicia, or “cop killer.”

FN originally created the 5.7X28mm cartridge as the ammunition for the P-90 submachine gun. The P-90 SMG was designed at the invitation of NATO and in response to military needs for a weapon to be used by “troops who needed both hands for other tasks, such as officers, NCOs and technical troops,” and that would be effective against the body armor that has become standard on the battlefield.

In the mid-1990s FNH set out to design a handgun to accompany the P90 SMG. This would not have been an issue if FN had stuck to its original profession that it would restrict the sale of its new armor-piercing ammunition and pistol.

The company clearly recognized the dangerous genie it was releasing. For example, a spokesman for the company told the Sunday Times in 1996 that the pistol was “too potent” for normal police duties and was designed for anti-terrorist and hostage rescue operations. The NRA’s American Rifleman claimed in 1999 that: “Law enforcement and military markets are the target groups of FN’s new FiveseveN pistol,” and told its readers, “Don’t expect to see this cartridge sold over the counter in the United States. In this incarnation, it is strictly a law enforcement or military round.” In 2000, American Handgunner magazine assured the public, “For reasons that will become obvious, neither the gun nor the ammunition will ever be sold to civilians or even to individual officers.”

High Capacity of the Fiveseven Adds to Its Mass Killing Power

In fact, however, the gun is being freely sold to civilians today, along with clearly problematic ammunition, through a variety of channels. What changed was precisely nothing.

Major Nidal Malik Hasan most likely gave some serious thought to his choice of weapons. With its high capacity magazine, extremely high velocity round, and cop-killing notoriety in Mexico, the FN FiveseveN was quite demonstrably an effective choice.

The reasons that American Handgunner referred to in 2000 became “obvious” last Thursday as Hasan efficiently murdered soldiers at Fort Hood in cold blood.

Beltway Snipers Chose Bushmaster AR -15 Clone

John Allen Muhammad was the senior member of the infamous Beltway sniper duo. His minor sidekick, Lee Boyd Malvo, was sentenced to life in prison for his role in the shootings, which took place over three weeks in October 2002 in Washington, D.C., Maryland, and Virginia. Ten people were killed and three others critically injured, as well as three other crime-related deaths attributed to the pair in Louisiana and Alabama.

2002 Washington Beltway Snipers Used a Bushmaster AR-15 Clone Like This Rifle

Muhammad, a veteran of the Persian Gulf war, picked a type of firearm with which he was undoubtedly familiar — a Bushmaster AR-15 type clone of the military’s M-16 assault rifle. Bushmaster made its mark and fortune by cranking out AR-15 clones that beat the impossibly porous 1994 Semiautomatic Assault Weapons “Ban.”

AR-15 rifles of this type are as common in America as weed-whackers in spring at a suburban hardware store. Here’s the point for slow-readers in this context: Any gangster or would-be terrorist who can’t get his hands on one of these guns — whether you call it a “semiautomatic assault rifle” or a “thunder-stick” — or one of the the AK clones that have been dumped in the country latterly by Eastern European manufacturers and U.S. import-whores is simply in the wrong game.

Cho’s Choice — Ex-Lockmaker Gaston Glock’s High Capacity Model 19

Virginia Tech shooter Cho chose as his lead weapon the Glock Model 19, perhaps the archetype of the modern high-capacity semiautomatic pistol. Easy to shoot, quick to reload, and demanding neither skill nor experience when shooting down unsuspecting innocents, the Glock Model 19 is also a favorite of gangsters and assorted thugs from Vancouver to the Yucatan.

Cho's Choice for Mass Murder -- Glock Model 19

“Tom Diaz has worn out some shoe leather—much like a good detective—in gathering facts, not myths or urban legend. “

“Few people know more about the subject than Tom Diaz and no single book tells the whole story better than No Boundaries. If you really want to know what organized crime in America looks like today, then read this alarming book.”

Leaders of Mara Salvatrucha (MS-13) in El Salvador Ordered Hit on ICE Agent in New York

Now it’s definite.

And it’s personal.

Leaders of the transnational organized criminal gang Mara Salvatrucha (MS-13) have upped the ante and ordered a hit on a U.S. Immigration and Customs Enforcement (ICE) agent in New York. An earlier plot to kill an LAPD gang detective, Frank Flores, was detailed in a RICO indictment earlier this year. (See “The Plot to Whack a Cop” here.)

“Few people know more about the subject than Tom Diaz and no single book tells the whole story better than No Boundaries. If you really want to know what organized crime in America looks like today, then read this alarming book.”

M-16 Assault Rifle Was One Choice of MS-13 Gangsters to Kill Federal Agent

According to an affidavit filed in support of an arrest warrant, an MS-13 member specifically tasked to kill the ICE agent described the plot to federal agents. The gangsters were looking for an AK-47 or M-16 assault rifle to do the job. (“Affidavit In Support Of Arrest Warrant,” United States v. Walter Alberto Torres, also known as “Duke,” United States District Court for the Eastern District Of New York, Case 1:09-mj-01055-RLM).

As Fairly Civil has noted before, there is no question that gangsters in the United States have access to the firepower to take on U.S. law enforcement agents in the same way that narcotraficantes go after Mexican law enforcement authorities. The question has been: would gang leadership risk bringing the fury of America’s cops and agents down on their heads?

It is worth noting that some gang experts familiar with the Mexican Mafia and their affiliated Sureno gangs insist that the Mexican Mafia made its decision a few years ago to target troublesome cops.

If there were any gloves left on, they are off now.

Here is an extended excerpt from the affidavit. (Under the circumstances, Fairly Civil does not include the name of the agent filing the affidavit. The target is called “John Doe” in the affidavit.):

2. Over the past several years, my office has engaged in an extended, in-depth investigation of members of the street gang La Mara Salvatrucha 13, also known as “MS-13,” (hereinafter “MS-13″). The defendant WALTER ALBERTO TORRES DUKE, also known as “Duke,” is a self-admitted member of MS-13. MS-13 engages in acts and threats involving murder, attempted murder, robbery and extortion, in violation of the laws of the various states, including New York, and narcotics trafficking, in violation of Title 21, U.S.C., Sections 841 and 846.

3. MS-13 is comprised primarily of immigrants from El Salvador and other Central American countries, with members located throughout the United States and Central America. In the United States, major MS-13 chapters, or “cliques,” have been established in New York, Virginia, Texas, California and elsewhere. Following induction, members of MS-13 frequently demonstrate their membership by wearing clothing containing the colors blue and white and/or the words “MS” or “13.”

4. In the Eastern District of New York, MS-13 cliques have been established in various towns on Long Island, including Hempstead, Freeport, Roosevelt, Huntington, Brentwood and Islip, and neighborhoods in New York City including Jamaica, Flushing, Forest Hills and Far Rockaway. The cliques routinely hold meetings to plan criminal activity, and members pay dues into a clique treasury. The treasury funds are used to purchase firearms and ammunition and to promote other illegal activity. Inter-clique meetings, called “Universals,” are used to coordinate criminal activities among different cliques. Participation in criminal activity by a member, especially violence directed at rival gangs, increases the respect accorded to that member and is necessary to obtain a promotion to a senior or leadership position.

5. In the Eastern District of New York, MS-13 members are frequently involved in violent altercations with members of rival gangs such as the Salvadorans With Pride (“SWP”), the Latin Kings, the Bloods and the Netas. In the Eastern District of New York, MS-13 members have repeatedly carried out “drive-by” shootings and other violent attacks targeting members of rival gangs and others.

6. According to a cooperating witness (“CW”), members of MS-13 have been plotting to kill ICE Agent John Doe (“Agent Doe”), a leader in the investigation of MS-13, since at least December 2006. Specifically, CW stated that he, along with fellow MS-13 gang members in the Flushing clique of MS-13, plotted to murder Agent Doe with either a rifle or a shotgun, in retaliation for Agent Doe’s ongoing investigation of MS-13 in Queens, New York. CW stated that the gang was exceedingly angry at Agent Doe, whom MS-13 blamed for the incarceration of dozens of gang members in Queens, New York, and elsewhere.

7. A second MS-13 gang member, who subsequently pled guilty to racketeering-related charges in this District, admitted to participating in the same plot to kill Agent Doe in late 2006 and early 2007, during proffer sessions with the government.

8. On or about October 16, 2009, at approximately 9:30 p.m., detectives from the New York City Police Department (“NYPD”) observed a group of several admitted MS-13 gang members walking on Northern Boulevard, near 150th Street, in Flushing, Queens, and approaching other pedestrians in an aggressive manner. Two detectives requested the individuals to stop, and requested them to take their hands out of their pockets. The individuals ultimately complied, and the detectives recognized four of the individuals as previously identified MS-13 gang members. A fifth individual, the defendant TORRES, was not known to the detectives at the time, but identified himself as a member of MS-13 and stated that he wished to provide information to the NYPD. None of the individuals, including the defendant, were taken into custody.

9. On or about October 20, 2009, defendant WALTER ALBERTO TORRES, also known as “Duke,” contacted detectives from the NYPD and requested a meeting, which was arranged for later that day. Prior to commencing the interview with the defendant, the defendant was advised of his Miranda rights, both orally and in writing. Defendant TORRES indicated that he understood and wished to waive his rights, and signed a written waiver to that effect.

10. During the interview, the defendant stated, in sum and substance and in part, that he has been a member of MS-13 since joining the gang in approximately 1998 in El Salvador. The defendant stated that he emigrated to the United States in 2001, at which point he joined an MS-13 clique in Springfield, Virginia. He later moved to Alexandria, Virginia.

11. The defendant further stated that he and other MS-13 gang members agreed to murder Agent Doe and engaged in planning the murder. In order to perpetrate the murder, the defendant stated that the gang was attempting to procure an AK-47 assault rifle or an M-16 machine gun, in anticipation that the bullets would penetrate the agent’s body armor. TORRES stated that the order for the murder came from gang leadership in El Salvador, and that he discussed the plan with MS-13 gang members as recently as August 2009.

12. During the October 20, 2009 interview, it was determined that there was an outstanding warrant for the defendant’s arrest. Specifically, the defendant is wanted in Fairfax, Virginia, for violation of probation following his guilty plea to grand larceny, a felony. The defendant was subsequently taken into custody.

13. On or about October 22, 2009, NYPD detectives and ICE agents again interviewed the defendant, this time at Riker’s Island. The defendant was advised of his Miranda rights, both orally and in writing. Defendant TORRES again indicated that he understood and wished to waive his rights, and signed a written waiver to that effect.

14. During the interview, the defendant described, among other things, multiple acts of violence he committed on behalf of MS-13. The defendant also described the plot to kill a federal agent, stating that he traveled to New York in or about August 2009 for the specific purpose of participating in the planning and execution of the murder plot. Information provided by the CW, as well as surveillance by law enforcement agents, corroborates the identity and gang membership of the coconspirators identified by TORRES. According to TORRES, he was in charge of putting the plan together, and he agreed with fellow gang members to participate in the ongoing plot to kill Agent Doe with a high powered rifle or similar weapon.

“’Curiouser and curiouser!’ Cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English). ’Now I’m opening out like the largest telescope that ever was! Good-bye, feet!’ (for when she looked down at her feet they seemed to be almost out of sight, they were getting so far off).

Pregnant MS-13 Gangster Brenda Paz Was Slashed to Death on the Banks of the Shenandoah River on the Morning of July 13, 2003 for "Ratting" on Fellow Gangsters

Here is a curious web of events, the common thread of which is one Alex Sanchez, aka “Rebelde.”

Sanchez is the putative “anti-gang activist” whom the government accused in a racketeering (RICO) indictment handed up in June 2009 by a federal grand jury in Los Angeles of being a fraud — acting in secret as a “shot-caller” while posing in public as the Mother Teresa of the Latino gang world. (For details of the case, start here, and here and follow links).

A horrific murder — typical of the work of members of the bloodthirsty transnational Latino gang, Mara Salvatrucha (MS-13) — was committed the morning of July 13, 2003.

On the banks of the gently flowing and historic Shenandoah River in Virgina, pregnant gangster Brenda Paz was brutally slashed to death by two of her fellow gangsters. One of them, Ismael Juarez Cisneros, later told investigators, “I loved her with all my heart.” Skeptics might be forgiven for thinking Cisneros — a deported and feloniously re-entered illegal alien from Mexico — had a curious manner of showing his affection.

Brenda’s offense?

“Ratting out” her fellow gangsters to federal authorities and a host of state and local police. Paz was scheduled to testify in a federal murder trial, in which she was prepared to implicate as homicidal mastermind a Virginia-based MS-13 shot-caller, Denis “Conejo” (Rabbit) Rivera — not incidentally one of her former lovers.

In a December 2005 piece on the Paz murder, “The Fight Against MS-13,” the CBS 60 Minutes television program summed up the relevant events:

Not only does MS-13 conduct investigations of its own, but like a corporate organization, most cliques have regular meetings where they discuss recruiting, money and murder – what they call a “greenlight.”

According to witnesses, the gang took a unanimous vote in a hotel that Brenda should be assassinated. The next morning, she was lured away on a fishing trip with her new boyfriend, Oscar Grande, and her friend, Ismael Cisneros.

A former MS-13 member who is now in jail on an ammunition possession charge and asked 60 Minutes not to use his name, went with them.

“I was facing the river. You know, I was watching, I was enjoying the view. Was summertime. It was nice place. And they was behind me fixing the fishing pole. And I turn my face. I see for couple seconds that she was get stabbing. And I freak out and I run away,” he recalled.

Asked to confirm if he saw the stabbing of Brenda Paz, he answered “Yes.”

She was stabbed by her boyfriend Oscar Grande and Ismael Cisneros, who later confessed. He said she had called out “Why?” “Because you’re a rat” she was told. They stabbed her approximately 13 times.

MS-13 Gangster Ismael Cisneros Claimed He "Loved" Paz, Whom He Was Convicted of Slashing to Death

Court records and other news reporting make clear beyond doubt that the anonymous “former MS-13″ gangster quoted on the 60 Minutes program was one Oscar Garcia-Orellana. Garcia had either somehow slipped between the cracks and evaded a 1998 deportation order, or feloniously re-entered the United States after having been deported to El Salvador.

Garcia was the only defendant in the 2005 Paz murder case trial to take the stand. Prosecutors claimed that he held a rope around Paz’s neck while the other two men slashed the life out of her and her unborn child. Garcia admitted that he had been present at the time of the slaughter, but claimed that he did not know in advance that Cisneros and Grande planned to kill her. He testified that instead of trying to save Paz, he had acted like a coward and run away when they started slashing her. His lawyers maintained that although he had once been an active member of MS-13, he had drifted away from the gang.

One of the defense witnesses for Garcia was — the aforesaid “anti-gang activist” Alex “Rebelde” Sanchez.

The Expert Witness for the Defense

Here is an excerpt from the report of the Paz murder trial in the May 4, 2005 edition of the Richmond Times-Dispatch newspaper:

Jurors also heard from Alex Sanchez, a gang expert from Los Angeles and a former MS-13 member. He explained that many young people join gangs like MS-13 to mitigate abuse or neglect at home.

“They feel a sense of knowing that a bigger group will stand up for them, that they are not alone,” he said.

Sanchez also said most older gang members fall away from MS-13 once they reach their 30s, when younger members take leadership roles. His comments dovetailed with the assertions of Garcia’s lawyers, who claim he was a part-time gang member who was not involved in MS-13’s decision to kill Paz.

“Tom Diaz has worn out some shoe leather—much like a good detective—in gathering facts, not myths or urban legend. “

“Few people know more about the subject than Tom Diaz and no single book tells the whole story better than No Boundaries. If you really want to know what organized crime in America looks like today, then read this alarming book.”

More important was a huge screw-up, belatedly admitted by government prosecutors. Here is an excerpt from the May 11, 2005 edition of the Richmond Times-Dispatch (which, it ought to be noted, cleaned the Washington Post’s clock on the coverage of this case) detailing the blunder:

Lawyer Alexander Levay, representing 32-year-old Oscar Garcia-Orellana, charged that government lawyers manipulated evidence and pursued conspiracy charges against Garcia even after prosecutors recognized their indictment against him was seriously flawed.

“If we can’t count on the government to play fair and by the rules, then each of us are a little less free,” Levay said.

At issue are allegations central to prosecutors’ contention that Garcia conspired with the accused mastermind of the plot to kill Paz, 21-year-old Denis “Conejo” Rivera. At the outset of the case, prosecutors said a taped telephone call between Garcia and Rivera — in which Garcia purportedly informed Rivera that Paz was dead — would prove Garcia’s guilt.

But prosecutors were forced to abandon that assertion after Garcia’s lawyers showed that it was not the defendant’s voice on the call. Rather, Rivera apparently was talking about the Paz murder with another gang member, Napoleon Hernandez, who shares the same nickname as Garcia, “Gato.” Hernandez has been deported.

Prosecutors acknowledged their mistake earlier in the case. Out of the presence of the jury, Assistant U.S. Attorney Ronald L. Walutes Jr. offered to withdraw the phone-call allegation from the indictment. But Garcia’s defense lawyers refused, hoping to show to the jury that the prosecution misstep made their entire case against Garcia suspect.

Levay said prosecutors had reason last year to suspect that they had the wrong Gato, but chose not to pursue the evidence.

“It didn’t fit their little scenario of the case, so they buried it,” Levay said. “The fact that they would mislead you into believing that the Gato on the phone was my client should be enough to find him not guilty.”

Levay’s attack on the prosecution case was part of a defense strategy to differentiate him from his fellow defendants.

“The indictment lumps everyone together, but the evidence distinguishes them again and again,” he said.

Oops.

Garcia walked — but right into the arms of federal agents, who arrested him on another felony charge of being illegally in possession of ammunition (by reason of his immigration status). According to federal court records, he took a plea and was sentenced to a year and a day. He has since presumably been deported to his native El Salvador [although the trail grows cold in official records, one might justifiably assume that the government kept track of him this time.]

His Other Left Foot

Fate takes strange turns in the gangster world.

This June Alex Sanchez found the shoe on the other foot — instead of witness for the defense, he became notorious defendant (for not the first time in his life).

In brief, Sanchez is accused of only pretending to have rejected the gang life and become a prominent anti-gang activist. In fact, the government claims, Sanchez has all along been a secret leader of an MS-13 clique in Los Angeles.

More specifically, Sanchez is said to have directed the murder of a renegade gang member in El Salvador, one Walter Lacinos (aka “Camaron,” also sometimes spelled “Cameron”).

Prosecutors persuaded a federal magistrate to detain Sanchez when he was arrested. The issue in a detention proceeding is not guilt, but the risk of flight. The strength of the government’s detention case was four wiretapped phone calls in which — according to the analysis of Los Angeles Police Department Detective and MS-13 expert Frank Flores — Sanchez allegedly directed one Juan Bonilla (aka “Zombie”) to whack Camaron.

Judge Manuel L. Real promptly confirmed the magistrate’s decision and set a new bail (detention) hearing for last Monday, October 19, 2009.

But according to the social justice website WitnessLA, something fascinating also happened. And it is no doubt this something that prompted Alex Sanchez’s court-appointed lawyer, Kerry Bensinger, to file an interlocutory appeal with the Ninth Circuit Court of Appeals regarding the detention order. Courts of appeal generally do not fiddle with such fact-based, pre-trial rulings of lower courts, but the 9th Circuit is said to have reversed Judge Real at an exceptional rate and to be “on his case.”

Sorry, Wrong Member, Redux

Alex Sanchez (WitnessLA Illustration)

Miracle of miracles, Sanchez’s defense lawyer, Bensinger, claimed to have found in the Sanchez case precisely the flaw that brought down the government’s case against Oscar Garcia-Orellana. Namely, the mistaken identification of a party to a key wiretapped phone conversation!

If there were a convenience store for defense tactics, this one would be right up at the front of the MS-13 impulse shopping shelf!

The whole thing reminds me of a common street defense I encountered during my brief tenure as a defense lawyer for indigent defendants in Washington, D.C. some years ago. It was commonly known as “the Tyrone defense” and was more or less automatically uttered by any miscreant collared with incriminating swag in hand, but not actually witnessed ripping the swag off.

“I was just standing here when my boy came by and he handed it to me,” the tarnished angel would state indignantly. And who would that have been? “I don’t know. We just call him ‘Tyrone.'” Naturally, the ubiquitous Tyrone could never be found.

And, yes, I actually saw the “Tyrone defense” work in at least one poorly “papered” case.

Here is the self-admittedly and vigorously pro-Sanchez WitnessLA’s description of the argument, which its editor, Celeste Fremon has headlined, “Arresting Alex Sanchez: Part 6: The Judge Real Show.” (Some among the social justice crowd — but most assuredly not including Ms. Fremon, who is among other things a professor of journalism and who loves her city, including whatever warts she perceives in the LAPD — play a sort of ideological whack-a-mole on this case alternating between whacking Judge Real as some kind of geriatric nut case, the LAPD as a vengeful racist gang determined to “get” Sanchez, and the FBI/Department of Justice as dull-witted, compliant tools of the slavering LA police establishment. Gangsters, on the other hand, generally conduct themselves with the comportment of wronged angels, who would never lie to, manipulate, or exploit the good intentions of those who come bearing breviaries of redemption. For the archetypal case of whackfrenzy, see usual suspect Tom Hayden’s piece beamed down from the empyrean to usual outlet The Nation. )

But I digress again! Here is the WitnessLA excerpt:

One of the issues that [attorney Kerry] Bensinger brought up during the cross examination was his contention that Flores completely and crucially misidentified a person on one of the calls, a guy with the street name of Zombie. According to Flores, the person, “Zombie,” on the phone call was also the person who was eventually arrested for the murder of Cameron, a murder that Sanchez had allegedly ordered during the last of the four phone calls that are the center of the prosecution’s case.

Yet, according to Bensinger, the guy called “Zombie” on the call was a very different fellow from Juan Bonilla, the killer, who is also called Zombie.

(I know this nickname business is dizzying, but try to stay with me here.)

Evidently there are a number of Zombies in and around the local MS-13 cliques—which is common in gangs. There might be a guy with the nickname of Zombie. But there may also be Lil’ Zombie…..Big Zombie….and heaven knows what other permutation of the nickname Zombie (or Sleepy or Dreamer or P’Nut or Snyper or Loco or…..you get the picture).

Anyway it seems that Bensinger’s Zombie (whom we’ll randomly designate as Zombie 2) dropped a whole lot of identifiers during the course of the long conversation, like references to several family members and—helpfully—his actual name.

With the tiniest amount of police work Flores could have verified which Zombie he had on this call—since it was so important to his case.

When asked if he did any of that follow-up investigation, Flores admitted that he had not. When Bensinger asked why, Flores said that he didn’t need to do any further checking because he knew it was Zombie/Juan on the call. (The exchange between Flores and Bensinger was longer than I am portraying here.) And how did the detective know he had the right Zombie in the face of fairly convincing evidence to the contrary? Flores did not elucidate.

However, what Flores did say is that Zombie/Juan was one of the feds’ informants, that after he was arrested for Cameron’s murder, he began singing like a bird and not only confessed to the killing himself, he also fingered Alex Sanchez and said that Sanchez told him on the phone to kill Cameron. [Fairly Civil’s emphasis.]

It would be an understatement to say that WitnessLA is skeptical of the government’s position, notwithstanding its own report of Flores’s testimony that “Zombie/Juan was one of the feds’ informants, that after he was arrested for Cameron’s murder, he began singing like a bird and not only confessed to the killing himself, he also fingered Alex Sanchez and said that Sanchez told him on the phone to kill Cameron.”

Unfortunately, the transcript of this latest detention hearing is not available as of this writing. Would that it were, because some observers who were present and have read the above wonder whether everyone was on the same planet. It is hard, nay impossible, to know what Detective Flores actually said.

Whack!

In any case, some would say that a singing bird (or rat) in hand — a federal informant who identifies himself as the person on the phone receiving orders — pretty well would establish who was on the other end of the phone line. If “Zombie/Juan” says it was he….? But Zombie/Juan/Whoever apparently uttered words that raise some doubt about who he actually was.

Not enough doubt, however, to persuade Judge Real.

Whack! Whack!

In between blows, it should be noted that gangsters often talk in elliptical ways when on the telephone or in circumstances in which they think someone else might be listening. For example, in No Boundaries I describe how convicted 18th Street gang hit-man Anthony “Coco” Zaragoza sometimes referred to himself in the third person and sometimes adopted “code” pseudonyms for himself in the course of conversations that were being wiretapped by the FBI. One of the investigative challenges for law enforcement is breaking through and interpreting the fog of jargon, crude codes, and such attempts at deception on the part of gangland’s little angels. What seems straightforward to, say, a social justice critic, may have an entirely different meaning to the gangsters involved.

Experienced gang prosecutors and investigators who are not related to or part of the Sanchez case have told me [first person code for Fairly Civil] that this sort of “back and forth” or what is known as the “battle of the transcripts” is fairly typical of the early stages of a big racketeering case — particularly when you have a case that relies on transcripts that require translation — and that it is best at this stage to keep an open mind and not jump to conclusions but rather to follow the evidence until the “back and forth” sorts itself out.

At this stage it appears to these observers that too many people are jumping to conclusions and making personal attacks (on both sides) when the real issues are evidence-based — namely, “First, “what precisely do the transcripts say?” Then, once that is established, second, “Now that we know what the transcripts say, what exactly does that mean?”

Curiouser and curiouser.

Whack! Whack! Whack!

The Cheshire Cat

Would you tell me, please, which way I ought to go from here?’

`That depends a good deal on where you want to get to,’ said the Cat.

`I don’t much care where–‘ said Alice.

`Then it doesn’t matter which way you go,’ said the Cat.

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Tom Diaz is a lawyer, author, journalist, and an accomplished public speaker. Diaz was formerly Democratic Counsel to the Subcommittee on Crime and Criminal Justice of the Judiciary Committee of the U.S. House of Representatives. He worked for then-Rep. Charles E. Schumer. His principal brief covered issues related to terrorism ... Continue reading →